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NUMBER 13-04-00202-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI B EDINBURG
IN THE INTEREST OF J.J., J.S., J.E., AND C.E., MINOR CHILDREN.
On appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Hinojosa and Yañez
Memorandum Opinion by Justice Hinojosa
This is an appeal from a final decree terminating the parental rights of appellants, Cheryl Edwards and Jerry Edwards, and awarding permanent managing conservatorship of the minor children, J.J., J.S., J.E., and C.E., to the Texas Department of Protective and Regulatory Services (ATDPRS@).[1] Cheryl is the biological mother of J.J., J.S., J.E., and C.E., and Jerry is the biological father of J.E. and C.E. Cheryl and Jerry each present separate issues on appeal. We affirm.
A. Factual Background
TDPRS initiated this termination proceeding following an incident that occurred on November 1, 2002. At approximately 7:30 p.m., Cheryl left her children with teenage sitters while she went to a bar with a friend. The sitters left the children alone and unattended, and one of the twins fell off the couch and injured his nose. Unable to reach Cheryl by telephone, the two oldest children, J.J. (age 10), and J.S. (age 8), asked a neighbor for help, and police were called at approximately 11:30 p.m. Cheryl arrived home about 3:00 a.m. The children were taken to a shelter pending an investigation. The children were officially removed from the home the following Monday.
At the time of this incident, Cheryl was on deferred adjudication community supervision for the offense of injury to a child. This charge resulted from an incident that occurred in February 2002, when Cheryl grabbed J.J., tried to throw him up the stairs, and kicked him. As a result of the November 1, 2002 incident, Cheryl was convicted for the offense of endangering a child and was still incarcerated at the time of the trial of this case. At the time of trial, as well as on November 1, 2002, Jerry, a convicted sex offender, was also incarcerated.
Trial evidence showed that Cheryl was referred to TDPRS a total of thirteen times. Six of these referrals were validated with Areason to believe@ the alleged abuse occurred. Several service plans were implemented by TDPRS following the investigations, which required Cheryl to attend counseling. Cheryl admitted that she did not attend counseling regularly as required by the service plans. She admitted knowing that the conditions of her community supervision prohibited her from going to bars and drinking alcohol. She also admitted knowing that if she violated her community supervision, she could be sentenced to the full range of prison time, and that it could be many years before she saw her children again.
The record shows that Cheryl has used illegal drugs since she was sixteen years old. Despite TDPRS service plans requiring Cheryl to enter a drug rehabilitation program, Cheryl has never done so.
The record further shows that Cheryl often spanked her children with clothes hangers, belts, and fly swatters, sometimes removing the end of the fly swatter and hitting the children with the exposed metal ends. Cheryl called the children names, such as Afat ass,@ Abastard,@ Afaggot,@ Abitch,@ Af-word,@ Awhoe,@ and Awoosie.@ Once, Cheryl broke a vein in her hand from hitting the children too hard.
While acknowledging that she had made past mistakes, and despite the fact that she was incarcerated, Cheryl maintained that she desired custody of her children. She insisted that she had attempted to improve herself during her incarceration by attending an anger management class, Atwelve-step@ classes, and a leadership class.
J.J., J.E., and C.E. are presently in stable foster homes, while J.S. is residing in the Helping Hand Home for Children, where he is being treated for bipolar disorder.
B. Standard of Review for Termination
of Parent-Child Relationship
An individual's parental rights may be terminated only if the state proves and the trial court finds by clear and convincing evidence that (1) the parent engaged in conduct constituting at least one of the statutory termination grounds enumerated in section 161.001(1) of the family code and (2) termination is in the child's best interest. Tex. Fam. Code Ann. ' 161.001 (Vernon 2002); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). Some of the common factors that courts use to evaluate the best interest of a child in a given case are (1) the emotional and physical needs of the child now and in the future, (2) any emotional and physical danger to the child now and in the future, (3) the parental abilities of the individuals seeking custody, (4) the programs available to assist those individuals to promote the best interest of the child, (5) the plans for the child by those individuals or by the agency seeking custody, (6) the stability of the home or proposed placement, (7) the acts or omissions of the parent which may indicate that the existing parent‑child relationship is not a proper one, and (8) any excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). This is not an exhaustive list and other factors also may be considered where appropriate. Holley, 544 S.W.2d at 372.
C. Appeal of Cheryl Edwards
1. Anders Brief
Cheryl=s court-appointed counsel filed an Anders brief in which he concluded that, after a thorough review of the record, Cheryl=s appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967).[2] The brief meets the requirements of Anders as it presents a professional evaluation of why there are not arguable grounds for reversal. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Cheryl=s counsel has certified that he has forwarded a copy of the brief to Cheryl and informed her of her right to examine the appellate record and to file a pro se brief. No pro se brief has been filed by Cheryl.
Upon receiving a Afrivolous appeal@ brief, the appellate courts must conduct Aa full examination of all the proceedings to decide whether the case is wholly frivolous.@ Penson v. Ohio, 488 U.S. 75, 80 (1988); see Garza v. State, 126 S.W.3d 312, 313 (Tex. App.BCorpus Christi 2004, no pet.). We have carefully reviewed the appellate record and counsel=s brief. We find nothing in the record that might arguably support Cheryl=s appeal.
We affirm the trial court=s judgment terminating Cheryl=s parental rights.
2. Anders Counsel
In accordance with Anders, counsel has asked permission to withdraw as counsel for Cheryl. See Anders, 386 U.S. at 744. An appellate court may grant a counsel=s motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511. We grant counsel=s motion to withdraw as counsel for Cheryl.
We order counsel to promptly advise Cheryl of the disposition of this case and the availability of further appellate review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).
D. Appeal of Jerry Edwards
In a single issue, Jerry contends the trial court failed to timely appoint counsel to represent him in the termination proceeding, thereby depriving him of his right to counsel as required by section 107.013 of the Texas Family Code. See Tex. Fam. Code Ann. ' 107.013 (Vernon Supp. 2004-05). He also contends that the failure to timely appoint counsel to represent him deprived him of effective assistance of counsel.
TDPRS filed its original petition for termination on November 4, 2002. The record does not reflect that Jerry requested appointment of counsel at that time. In his brief, Jerry admits the trial court appointed counsel for him in October 2003. The hearing on the termination of Jerry=s parental rights was held on February 17, 2004.
Section 107.013(a) of the Texas Family Code requires the trial court to appoint an attorney to represent an indigent parent who opposes a suit seeking termination of his or her parent-child relationship. See Tex. Fam. Code Ann. _ 107.013(a) (Vernon Supp. 2004-05). The complete failure of a court to appoint counsel for indigent parents constitutes reversible error. See In re M.J.M.L., 31 S.W.3d 347, 354 (Tex. App.BSan Antonio 2000, pet. denied). However, the statute does not establish a deadline by which the court must appoint counsel. See Tex. Fam. Code Ann. _ 107.013(a); In the Interest of J.R.P., 55 S.W.3d 147, 149 (Tex. App.BCorpus Christi 2001, pet. denied).
We hold the appointment of counsel eleven months after the petition for termination was filed, but four and one-half months before trial, does not violate section 107.013 of the Texas Family Code. Furthermore, because we have held that the timeliness of the appointment of counsel was sufficient under section 107.013, and Jerry=s ineffective assistance claim is based on the untimely appointment of counsel, we need not address this sub-issue. See Tex. R. App. P. 47.1. Jerry=s sole issue is overruled.
We affirm the trial court=s judgment terminating Jerry=s parental rights.
FEDERICO G. HINOJOSA
Justice
Concurring and Dissenting Memorandum Opinion
by Justice Yañez
Memorandum Opinion delivered and filed this
the 13th day of April, 2006.
[1]The decree also terminated the parental rights of Danny Smirl, the biological father of J.S., and AUnknown Father,@ the biological father of J.J., but they are not parties to this appeal.
[2] This Court, as well as several of our sister courts, have held that Anders procedures apply in parental rights termination cases. See Porter v. Tex. Dep=t of Protective & Regulatory Servs., 105 S.W.3d 52, 56 (Tex. App.BCorpus Christi 2003, no pet.). See also In re L.D.T., 161 S.W.3d 728, 731 (Tex. App.BBeaumont 2005, no pet.); Taylor v. Tex. Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.BAustin 2005, pet. denied); In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.BHouston [14th Dist.] 2004, no pet.); In re K.D., 127 S.W.3d 66, 67 (Tex. App.BHouston [1st Dist.] 2003, no pet.); In re K.M., 98 S.W.3d 774, 776-77 (Tex. App.BFort Worth 2003, no pet.); In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.BWaco 2002, no pet.); In re K.S.M., 61 S.W.2d 632, 634 (Tex. App.BTyler 2001, no pet.).